The Conduct of Mr Daniel Kawczynski MP
Transcript of The Conduct of Mr Daniel Kawczynski MP
The Independent Expert Panel | The Conduct of Mr Daniel Kawczynski MP
The Independent Expert Panel
The Conduct of Mr Daniel Kawczynski MP
Presented to the House of Commons pursuant to House of Commons Standing Order No 150A
Ordered by the House of Commons to be printed 14 June 2021
HC 326 Published on 14 June 2021 by authority of the House of Commons
The Independent Expert Panel | The Conduct of Mr Daniel Kawczynski MP
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The Independent Expert Panel
The Independent Expert Panel was established by the House of Commons on 23 June 2020; its members were appointed on 25 November. The Panel hears appeals against decisions made by the Parliamentary Commissioner for Standards (the Commissioner), considers referrals from the Commissioner and determines sanctions in cases involving an allegation against an MP of a breach of Parliament’s Sexual Misconduct Policy or the Bullying and Harassment Policy, under the Independent Complaints and Grievance Scheme.
Current membership
Mrs Lisa Ball Ms Monica Daley Mrs Johanna Higgins Rt Hon Sir Stephen Irwin (Chair) Professor Clare McGlynn QC (Hons) Miss Dale Simon Sir Peter Thornton Dr Matthew Vickers
Powers
The Panel’s powers are set out in House of Commons Standing Orders Nos 150A to 150D. These are available on the internet via www.parliament.uk.
Publication
© Parliamentary Copyright House of Commons 2021. This publication may be reproduced under the terms of the Open Parliament Licence, which is published at www.parliament.uk/site-information/copyright-parliament/. Independent Expert Panel reports are published on the Panel’s website at www.parliament.uk/mps-lords-and-offices/standards-and-financial-interests/independent-expert-panel/ and in print by order of the House.
Panel staff
The current Secretary to the Panel is Emily Baldock.
Contacts
All correspondence should be addressed to the Secretary to the Panel. The Panel’s email address is [email protected].
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Contents
Report by the Chair of the Panel 3
Decision on sanction 6
Appeal against the decision on sanction 14
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Report by the Chair of the Panel
1.1 The Independent Expert Panel was established by the House of Commons on
23 June 2020;1 its members were appointed on 25 November.2 The Panel hears
appeals against decisions made by the Parliamentary Commissioner for
Standards (the Commissioner), considers referrals from the Commissioner and
determines sanctions in cases involving an allegation against an MP of a breach
of Parliament’s sexual misconduct policy or the bullying and harassment policy,
under the Independent Complaints and Grievance Scheme.3
1.2 The Panel is guided by the principles of natural justice, fairness for all parties,
transparency and proportionality. We understand the seriousness of, and the
harm caused by, bullying, harassment and sexual misconduct. We are
rigorously independent, impartial and objective, acting without any political
input or influence.
1.3 This is a report of a decision of the Panel on sanction made following a referral
from the Parliamentary Commissioner for Standards. The Commissioner found
that the Respondent, Mr Daniel Kawczynski MP, the Member for Shrewsbury
and Atcham, had acted in breach of Parliament’s Bullying and Harassment
Policy.
1.4 On 27 April 2020 the Respondent had been unable to attend a virtual meeting
of a Parliamentary committee as a result of technical difficulties that the two
Complainants and other staff had not been able to resolve on the day. He was
repeatedly rude, aggressive and impatient with the Complainants and other
staff before, during and after the meeting; he made critical and untruthful
comments on a WhatsApp group shared with other Committee members; he
threatened formal complaint.
1 HC Deb, 23 June 2020, col 1244 [Commons Chamber] 2 HC Deb, 25 November 2020, col 887 [Commons Chamber] 3 Independent Complaints and Grievance Scheme: https://www.parliament.uk/mps-lords-and-offices/standards-and-financial-interests/parliaments-behaviour-code/
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1.5 The Commissioner determined that the Respondent had acted in an
intimidatory and threatening manner towards the Complainants and abused his
power as a Member of Parliament by behaving in this manner and by making
exaggerated and malicious claims regarding the poor performance of the
Complainants. He did not appeal the Commissioner’s decision.
1.6 On 3 February 2021 I appointed a sub-panel of three members to determine
the sanction to be imposed. The members of the sub-panel were:
• Mrs Johanna Higgins
• Miss Dale Simon (chair)
• Dr Matthew Vickers
1.7 On 30 March the sub-panel reported their decision to me as Chair of the Panel.
The sub-panel determined that the Respondent should make an apology on the
floor of the House by means of a personal statement. He appealed that
decision.
1.8 On 5 April I appointed a sub-panel of three members to hear the appeal
against sanction. The members of the sub-panel were:
• Mrs Lisa Ball
• Rt Hon Sir Stephen Irwin (chair)
• Professor Clare McGlynn QC (Hons)
1.9 The Respondent was informed of the decision of the appeal sub-panel that his
appeal was not successful on 7 June. We concluded that the determination of a
requirement to make a public apology on the floor of the House was proper
and proportionate.
1.10 The decisions of the sub-panels set out the background to the case, the
processes followed and the reasons for their decisions.
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1.11 I make this report to the House to provide context for the personal statement
to be made by Mr Kawczynski. The names of the Complainants, any witnesses
referred to and their identifying details have been redacted. All other material
in the case, including the investigator’s report and the Commissioner’s decision
and memorandum except as referred to in the decision, remains confidential.
Rt Hon Sir Stephen Irwin
14 June 2021
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Decision on sanction
Referral by the Parliamentary Commissioner for Standards dated 2 February 2021
Decision of the sub-panel dated 30 March 2021
Sub-panel members: Mrs Johanna Higgins, Miss Dale Simon (chair), Dr Matthew Vickers
The complaint
2.1 On 29 April 2020 the Complainants, who were both members of Committee
staff, submitted a collective complaint alleging that the Respondent’s behaviour
before, during, and after a meeting of a Parliamentary committee ("the
Committee") on 27 April 2020, breached Parliament's Bullying and Harassment
Policy. The first Complainant (C1) complained about the way in which the
Respondent conducted himself during several phone calls and in WhatsApp
messages he sent on the Committee WhatsApp group. C1 stated that despite
his significant experience of working in the highly charged atmosphere of
Parliament, he began to feel intimidated whenever the Respondent would call.
The second Complainant (C2) complained about the way that the Respondent
behaved during several phone calls on C2’s personal number, about the
Respondent’s intimidating behaviour when he physically attended the virtual
meeting room and the Respondent’s comments about C2’s competence on the
Committee’s WhatsApp group. C2 stated that the Respondent’s conduct directly
towards him and via comments to others left him feeling anxious, upset,
harassed and intimidated.
2.2 The Respondent does not deny acting as alleged; he was unable to attend the
virtual meeting of the Committee due to technical issues, and accepts that on
several occasions during 27 April 2020, he let the two Complainants and others
know of his dissatisfaction with them. He also acknowledged that his
frustration, along with more longstanding personal issues may have had a
detrimental impact on the way in which he behaved on 27 April 2020.
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The Commissioner’s findings
2.3 The investigation of the complaint was initiated through the Independent
Complaints and Grievance Scheme (ICGS) and, in accordance with the Scheme,
it was investigated by an independent external investigator (the Investigator).
The Investigator concluded that the Respondent’s behaviour on 27 April 2020
breached Parliament’s Behaviour Code but did not meet the threshold of
bullying and harassment.
2.4 The Commissioner did not accept the recommendation of the Investigator and
concluded that the Respondent’s accepted behaviour did breach the Bullying
and Harassment Policy attached to Parliament’s Behaviour Code. She
determined that the Respondent had acted in an intimidatory and threatening
manner towards the Complainants on a number of occasions on 27 April 2020
and abused his power as a Member of Parliament by behaving in this manner
and by making exaggerated and malicious claims regarding the poor
performance of the Complainants.
2.5 The Commissioner found the following matters to be aggravating factors
regarding the severity of the Respondent’s breach of the Bullying and
Harassment Policy:
a) The Respondent’s significant abuses of power – The Commissioner
determined that the Respondent had abused his power on several
occasions during 27 April 2020 and that his abuse of power was a
significant aggravating factor.
b) The Respondent’s behaviour towards other Parliamentary colleagues – The
Commissioner determined that the evidence collected by the Investigator
showed that the Respondent’s behaviour towards other Parliamentary
colleagues breached Parliament’s Behaviour Code on several further
occasions. She concluded that this was a significant aggravating factor as it
showed an embedded lack of respect for the Code and the culture that
Parliament is striving to achieve.
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c) The lack of insight shown by the Respondent – The Commissioner found
that, on several occasions during his two interviews with the Investigator,
the Respondent showed a worrying lack of insight and contrition in relation
to the appropriateness and impact of his behaviour. The Respondent
described his behaviour towards the Complainants as having been
“perfectly reasonable” and commented that the Complainants have a
"completely different narrative and understanding as to what is acceptable
and what is not acceptable in the workplace." The Commissioner concluded
that these comments demonstrated a lack of understanding and respect for
the Behaviour Code, an inability to consider the perspective of others, and
an indifference to the culture that Parliament is striving to achieve.
d) The lack of contrition shown by the Respondent – The Commissioner also
concluded that the Respondent’s comments in interview showed a lack of
contrition. The Commissioner was concerned that the Respondent had
stood by the comments that he made in the Committee’s WhatsApp group,
and had stated that he wouldn’t change what he had written if he had the
time again. The Commissioner concluded that his comments demonstrated
a continuing lack of insight into the impact of his conduct and a failure, or
unwillingness, to reflect on how his behaviour fell short of the values
expressed in Parliament's Behaviour Code. The Commissioner further
concluded that the Respondent did not demonstrate any understanding
when interviewed as to why his phone calls with the Complainants’
manager on 27 April 2020, which involved an attempt to make a meritless
complaint about C2, were inappropriate.
e) Making the phone calls on the evening of 27 April 2020 to the
Complainants’ manager whilst under the influence of alcohol – The
Commissioner concluded that the Respondent’s behaviour was grossly
unprofessional and a significant breach of Parliament’s Behaviour Code.
2.6 The Commissioner found the following factors to be mitigating factors:
a) The Respondent’s apology of 4 May 2020 – The Respondent apologised for
“any behaviour lacking in traditional patience and good manners towards
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your teams” after he received a letter from two senior members of the
Parliamentary community challenging his behaviour on 27 April 2020.
b) The Respondent’s subsequent attendance at Parliament’s Valuing Everyone
training.
c) Having received no previous or subsequent ICGS complaints about the
Respondent’s conduct.
2.7 The Commissioner concluded that the breaches of the Bullying and Harassment
Policy in this case were so serious that she could not conclude the matter
under the powers given to her by the House through Standing Order No. 150.
She therefore referred this case to the Independent Expert Panel on 2 February
2021 to consider an appropriate sanction for the Respondent’s conduct.
Determination of sanction
2.8 We asked the Respondent to prepare a reflective statement for consideration
by the sub-panel before sanction was determined and offered him the
opportunity to make a written and/or oral statement on sanction. The
Respondent submitted a written reflective statement as requested and elected
to make oral submissions to the sub-panel on sanction.
2.9 We convened virtually on 25 March 2021 to hear the Respondent’s oral
submissions on sanction and to determine the appropriate sanction in this case.
2.10 In determining the appropriate sanction, we followed the principles set out in
Part A of the Panel’s guidance on sanctions1 and applied three further
principles:
a) The sanction should reflect the impact of the conduct on the complainant.
1 The Independent Expert Panel, Appeals, referrals and sanctions: guidance for the parties, (February 2021)
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b) The sanction should reflect the nature and extent of the misconduct
proved.
c) Where possible, the approach to sanction should incorporate positive steps
aimed at improving the culture and behaviour of Members, staff and the
wider Parliamentary community.
2.11 We carefully considered the investigation report and the decision of the
Commissioner, all the relevant circumstances of the case, all relevant
aggravating and mitigating factors, the views of the Complainants, the
reflective statement submitted by the Respondent, written correspondence to
the Panel and the Respondent’s oral submissions.
2.12 We consider that the following aggravating factors are relevant to this case:
a) Abuse of power or authority – We agree with the finding of the
Commissioner that the Respondent abused his power as a Member of
Parliament when he acted in a threatening and intimidating manner
towards the Complainants and by making exaggerated and malicious claims
regarding the poor performance of the Complainants.
b) Breaches of the Behaviour Code in respect of other members of the
Parliamentary community on the same day – The Respondent was rude to
junior Digital Service and technical staff who attended his office in an
attempt to resolve his IT issues. We agree with the Commissioner that the
Respondent’s inappropriate behaviour towards other members of the
Parliamentary community suggested an embedded lack of respect for the
Code and the culture that Parliament is striving to achieve.
c) Lack of insight and contrition – We note the Commissioner’s conclusion
about the lack of insight and contrition demonstrated by the Respondent
during the investigation process. We determine that the Respondent has
demonstrated an increased level of contrition during the latter stages of the
complaints process through his written apologies to the Complainants, in
his letter to the Panel Chair, in his reflective statement and during his oral
submissions when he apologised unreservedly for inappropriate behaviour
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and the impact that it had had on the Complainants. In respect to the issue
of insight, we note that the Respondent has taken steps to better
understand his personal drivers and the impact of his behaviour on others;
however, we conclude that although his insight is developing, it is still quite
limited.
2.13 We consider that the following mitigating factors are relevant to this case:
a) Genuine remorse – We agree with the Commissioner’s identification of the
Respondent’s apology of 4 May 2020 as a mitigating factor. The
Respondent was challenged about his inappropriate behaviour towards
members of staff by two senior managers. His apology stated:
“Just to follow up have thought about the letter long and hard. I
understand and respect your concerns outlined. I apologise for any
behaviour lacking in traditional patience and good manners towards
your teams.
“Hope you can accept my apology and pass on.”
This apology was not passed on to the Complainants who had already
lodged their complaints by this time. The Respondent subsequently
apologised to both Complainants in writing and expressed remorse in
correspondence to the sub-panel in his reflective statement and oral
submissions. When asked why his apology to the Complainants was not
sent before the Commissioner announced her decision to uphold the
complaints earlier this year, the Respondent explained that he felt that he
had been vindicated by the Investigator and it was only after receiving the
Commissioner’s decision that he realised how wrong his behaviour had
been. The apology of 4 May 2020 did not expressly accept any wrongdoing
by the Respondent. Consequently, we conclude that some concerns remain
as to the sincerity of the apologies given to date.
b) Steps taken to address behaviour – We agree with the Commissioner’s
identification of the Respondent’s subsequent attendance at Parliament’s
Valuing Everyone training as a mitigating factor. The Respondent also
stated in his reflective statement and oral submissions that he has
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undertaken emotional intelligence training in order to better understand the
impact of his actions on others. However, when asked directly to explain
how his actions had impacted on the Complainants, the Respondent
struggled to find an appropriate response. He eventually stated that the
incident must have been very “unpleasant” for the Complainants. He also
stated that he could see that for the Complainants to have taken the
process to this degree they must have felt “very upset and aggrieved by his
behaviour” and that he was “very upset and apologetic about that.” We
therefore conclude that although the Respondent has taken steps to
address his behaviour, the impact of the steps taken is currently still quite
limited.
c) Physical or mental ill health or other mental trauma – We accept that the
Respondent was experiencing a high level of stress in his personal and
professional life when he breached the Bullying and Harassment Policy.
During his oral submissions, he stressed the importance of the work of the
Committee to his constituents and the personal abuse that he and staff in
his constituency office were experiencing in addition to the general
upheaval and increased workload because of the pandemic. We also take
account of the personal trauma that he experienced in his earlier life and
the likely impact of such experiences on his behaviour.
2.14 We take account of the impact of the Respondent’s behaviour on the
Complainants, as described in the impact statements submitted by the
Complainants, and their views on appropriate sanction. Both Complainants
were clear that their primary concern was not punishment but an outcome that
would help to improve the culture of Parliament and the behaviour of Members.
Sanction decision
2.15 This case involves a serious breach of the Bullying and Harassment Policy
which arose from a series of inappropriate interactions between the
Respondent, the Complainants and other members of the Parliamentary
community on 27 April 2020. The country had recently entered the first period
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of lockdown, and there were considerable pressures on MPs and Parliamentary
staff alike to adjust quickly to a new virtual way of working. The Respondent
had been unable to take part fully in a committee meeting and as such he was
entitled to express his dissatisfaction to the committee staff; however, he failed
to appreciate the challenges that the committee staff were experiencing and
abused his power by persistently demanding, in a threatening and intimidating
manner, that the Complainants fix a problem that they had no control over,
and by making exaggerated and malicious comments about their competence.
2.16 The Respondent accepts that his conduct which forms the subject of these
complaints was wrong; he is taking steps to improve his understanding of the
impact of his actions on others and has commenced a project which will result
in a book on emotional intelligence. Consequently, we are of the opinion that
the likelihood of the Respondent repeating the type of behaviour that led to
this complaint has been significantly reduced.
2.17 We note that the Respondent has apologised for his behaviour previously;
however, we have concerns about the sincerity of those apologies, given the
Respondent’s limited insight into the nature of his misconduct at the time when
the apologies were made. We therefore conclude that an apology to the House
would address our remaining concerns, help to improve the culture and
behaviour of Members, staff and the wider Parliamentary community and
accord with the wishes of the Complainants.
Conclusion
2.18 We determine that the Respondent should make an apology on the floor of the
House by means of a personal statement. With the leave of Mr Speaker, the
text of that apology should be agreed in advance by the Chair of the Panel.
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Appeal against the decision on sanction
Appeal by the Responder against the decision on sanction of the sub-panel dated 30 March 2021
Decision of the appeal sub-panel dated 7 June 2021
Sub-panel members: Mrs Lisa Ball, Rt Hon Sir Stephen Irwin (chair), Professor Clare McGlynn QC (Hons)
Background to the appeal
3.1 On 29 April 2020 the Complainants made a complaint against the Respondent
of breaches of Parliament’s Bullying and Harassment Policy. The allegation was
that before, during and after a virtual meeting of a Parliamentary committee on
27 April 2020, the Respondent acted in a threatening, aggressive and
intimidating way towards the Complainants, and towards other Parliamentary
staff. These events took place soon after the “lock-down” occasioned by the
Covid-19 pandemic. Extensive preparations had been made for the virtual
meeting, although of course such arrangements were much less familiar at that
time. The Respondent considered that a virtual meeting should not take place
and he tried, but failed, to persuade the Committee Chair to abandon the
meeting. For irrelevant technical reasons, on the day in question the
Respondent found himself unable to join the virtual meeting. As a result, he
made repeated complaints to the Complainants and to other support staff who
were trying to help him. It is agreed that he did not shout or swear, but the
force and aggression he displayed were found to constitute bullying. It is not
necessary to repeat all the detail, but it may be helpful to give some flavour of
the Respondent’s behaviour.
3.2 From early in the morning of 27 April 2020, the Respondent contacted the
second complainant (C2) on his private mobile phone. He did so repeatedly
during the day. He was repeatedly aggressive, rude and impatient in these
phone calls. He used extreme, although not profane, language: “this is a
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scandal, an outrage, this cannot be happening”; “this is a farce”; “you are
useless”. He described himself as “absolutely appalled”. He threatened formal
complaint. He also stated that he wished to lodge a formal complaint about the
Committee Chair. He threatened to resign from the Committee. In reference to
C2 he described him as a member of “the snowflake generation.” Essential to
understanding the story is that no one of these responses stimulated complaint
or led to the finding that the conduct of the Respondent constituted a breach of
the relevant policy. It was the vehemence and repetition of the Respondent’s
statements which did so.
3.3 Later in the sequence of events, the Respondent expressed his criticisms with
equal force on the WhatsApp group which had been formed to assist
committee business. This must have been intended and did have the effect of
denigrating Parliamentary staff, and in particular C2, to all the Committee
members and many other staff. Part of the investigation report reads:
“C1 [the first Complainant] also told me that if R’s [the Respondent’s]
discourteous behaviour had been limited to the various phone calls
referenced above then he might have been inclined to have ‘written it off as
someone having a bad day’. The WhatsApp messages, which would have
been read by all Committee members and the staff that support them, were
untruthful and an egregious way of trying to resolve his dissatisfaction.”
3.4 As we have indicated, the Respondent’s anger was directed at other staff than
the two complainants, in particular at technical staff who were attempting to
assist. Although no complaint was made by these staff members, this evidence
is supportive of the complaints, indicating as it does the behaviour of the
Respondent at the time. Here too his conduct was unbridled. As it was
expressed in another part of the investigation report:
[A senior manager in the Digital Service] stated that:
• R [the Respondent] was rude to a member of his staff when they called
him to offer help.
• R tried to call him just after 9am (while he was in a meeting); when he
could not get through R sent him two chasing emails (09:13 and 09:56)
and left two voice messages (09:54 and 09:56) all asking him to call R
urgently.
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• When he did call R back, R ‘ranted’ at him: “What the hell are you playing
at?” and “I’ve turned this bloody computer upside down trying to get it to
work” and “When this thing is over, I am going to get you to come to my
office because this is just not right.”
• At 10:27 R emailed him once and called him twice demanding that he be
called back. When R was called back, five minutes later, he ‘continued to
rant’ at how “this is all wrong – all of the equipment and infrastructure is
just wrong – and you will come to my office when this is over.” When R
complained about the PDS support team he was told they were working
very hard to support members in this new way of working. R responded:
“we’re all working hard – I am talking about working effectively.”
• R demanded the name of his line manager so he could complain about
him. R then called him back to complain that he could not get through to
his line manager and asked him to make sure his line manager called R
back.
• R emailed again at 11:57 asking him to call him urgently. When he called,
R said he still needed to speak to his line manager to make a complaint. R
then said “this was completely unacceptable”, before asking four times,
“How do you get away with it?” R said that if he treated his constituents in
the way he had treated R, “he would have been out of a job within a
month.”
3.5 It is also clear that as this day proceeded, the Respondent consumed a
significant amount of alcohol.
3.6 The Respondent essentially acknowledged the facts as alleged, although as we
shall see, his attitude to and understanding of his own behaviour has in our
view been at best ambiguous.
3.7 The matter was investigated in accordance with the Independent Complaints
and Grievance Scheme (ICGS) and a report was furnished to the Parliamentary
Commissioner for Standards (the Commissioner). The Commissioner accepted
the facts as found by the Investigator, but differed in her interpretation and
conclusion. She concluded that the Respondent had acted in breach of
Parliament’s Bullying and Harassment Policy and Behaviour Code. The
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Commissioner considered that the Respondent had acted in an intimidating and
threatening manner, had abused his power as a Member of Parliament, and
had made exaggerated and malicious claims as to the performance of the
Complainants.
3.8 The Commissioner also concluded that the matters were so serious that the
case should be referred for sanction to the Independent Expert Panel (IEP).
3.9 The Commissioner informed the Respondent of her decision on 1 February
2021.
3.10 The Respondent did not appeal the conclusions of the Commissioner. In
passing, we note that in the course of the proceedings before us he explained
that he had not done so through concern that an appeal, if unsuccessful, might
bring a heavier sanction than would otherwise arise. It was, in other words, a
tactical decision. He told us that he wished he had appealed. We return to the
implications of this later in our reasons.
3.11 On 30 March 2021, the sub-panel reached their conclusion on sanction. Their
decision was that the Respondent should make an apology on the floor of the
House by means of a personal statement. On 30 April 2021, the Respondent
appealed the decision on sanction; the last day on which he was able to do so.
The current appeal before us is a challenge to that decision.
The decision under challenge
3.12 It is not necessary here to recapitulate the decision of the sub-panel below.
Their reasons and decision were set out in full.
The basis of the appeal
3.13 The Respondent appealed with the benefit of legal advice.
3.14 The grounds for appeal can be summarised as follows. Firstly, it is suggested
that the sub-panel failed to pay sufficient or any account to a number of
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matters: the impact on the Respondent’s mental health “of having to give a
public apology on the floor of the House”; the psychological and emotional
pressure operating on the Respondent at the time, due to the pandemic and to
the then recent floods in his constituency; his apology given to the
Complainants; the material he provided to the sub-panel and the efforts he had
made “in his rehabilitation”. It was also said that the sub-panel had failed to
consider first the lowest appropriate level of sanction and to give reasons why
they had rejected lower sanctions than that which they imposed.
3.15 The Respondent also sought to introduce fresh evidence, in the form of a
report from Ms Lucy Lurie, a clinical psychologist. The report was prepared
after the hearing before the sub-panel below, and is dated 18 May 2021. In the
course of his written submissions to us, dated 30 April 2021, the Respondent
stated that: “there has been a further development of the [Respondent’s]
condition since 8 March 2021. A medical report could not have been reasonably
presented before the sub-panel made its decision. If the medical report is
accepted, the [Respondent] (sic) has a real prospect of affecting the outcome
of this appeal.”
The “fresh” evidence
3.16 It is appropriate to deal with this issue first. One of the potential grounds of
appeal against a sanction determined by a sub-panel is that “credible fresh
evidence has become available, which could not reasonably have been
presented before the sub-panel made its decision [emphasis added] and which,
if accepted, has a real prospect of affecting the outcome”. It is important to
stress the requirement that such evidence should not be admitted in an appeal
where it could have been presented below. That is a common provision in
appellate structures. It acts to prevent appellants seeking to alter or extend the
nature of their case, having lost at first instance. Every party has an obligation
to put forward their full case at the first relevant hearing. That is an obligation
which the IEP will take seriously.
3.17 We considered the report of Ms Lurie in order to determine whether there was
fresh material which could not have been brought before the sub-panel below,
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and whether the report might have a real prospect of affecting the outcome.
The report considers the background and psychological history of the
Respondent, considers his current mental state and addresses the impact of
the requirement to make a public apology. One major point made in the report
is that the mental state of the Respondent, for reasons which it is not
necessary to detail here, is markedly better than it was a year ago. There is no
evidence to suggest this is a very recent development: rather the contrary.
There is no evidence in the report to substantiate the suggestion that matters
have changed in any material way since the beginning of March. In the course
of the hearing, the Respondent was asked directly whether there had been a
“further development … of his condition since 8 March 2021”. He gave no
evidence that there was.
3.18 This report could have been obtained before the first hearing. There is nothing
in the content which could not have been elicited then. It falls at the first
hurdle for the admission of fresh evidence on an appeal. It should not have
been proffered in the way it was, on the unfounded assertion of relevant
developments after the first hearing. That would be sufficient to deal with this
point. However it is relevant to add that we found nothing in the report which,
had it been accepted in evidence, and fully analysed, would have altered the
outcome.
3.19 We also note the following. The IEP was aware that the Respondent had
consulted one of the doctors provided by the House medical service. That
doctor indicated he was in a position to provide a report. Once the IEP was
informed that the Respondent sought to introduce expert evidence, the
Respondent was asked to consent to a report from the House doctor. He
withheld that consent.
The other grounds
3.20 We have summarised the criticisms advanced above. The Respondent’s case is
that he was under great pressure at the time, in part for personal reasons
which he explained to us. In his public role, a number of real pressures had
arisen. Brexit and serious flooding in his constituency both gave rise to serious
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difficulties for him as the local MP. The Respondent is 6’9” tall and thus very
conspicuous in the street, in his local shops. He found himself under repeated
attack by members of the public on both these grounds. He emphasised to us
how such attacks could be extremely vicious. Against that background, the
advent of the pandemic added another layer of pressure. It was in that context
that his frustration with the technical problems associated with a remote
meeting caused him to be so angry. Nevertheless, he emphasised that he had
never set out to bully anyone and did not wish to bully anyone.
3.21 The Respondent also emphasised the steps he had taken in response to the
complaints. He had considerable support from his constituency party. They had
recognised that he was under strain. Through the constituency party he had
engaged with a specialist in psychological matters and, as one of the results,
the two of them are writing a book on emotional intelligence. He had thought
deeply about these matters since. He recognised what he should have done in
the face of the frustrations of that day. He should have learned how to let go,
instead of which he “panicked”. He had also given up alcohol, and felt much
better for that. He had entered into a new relationship which was stable and
supportive. He had also apologised to the two complainants.
3.22 In essence, the Respondent’s complaint is that the sub-panel below did not
sufficiently reflect these circumstances. Despite advice from at least one senior
MP, he saw the requirement to make a public apology as a humiliation, and
could not accept it as being justified. He feared that media reports of the
apology would distort and exaggerate its meaning and effect. The message
would be “Kawczynski is a bully”. He said that he was not a bully.
The test
3.23 An appeal from a decision of a sub-panel on sanction is not a rehearing from
scratch. It is important that this should be properly understood. In the absence
of credible fresh evidence, and in the absence of some exceptional factor giving
rise to a compelling reason that an appeal should be heard or allowed, an
appeal can only succeed where it is established that the decision challenged
The Independent Expert Panel | The Conduct of Mr Daniel Kawczynski MP
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was unreasonable or disproportionate. This is a critical distinction from a simple
rehearing. If it were otherwise, there would in almost every case be an
incentive to appeal on the basis that the appeal sub-panel might just take a
different view, and perhaps simply to postpone the imposition of a sanction.
The decision of a first sub-panel would likely become a mere staging post on
the way to a second sub-panel.
The criticisms of the sub-panel below: our conclusions
3.24 As the sub-panel below pointed out in paragraph 2.10 of their decision, there
are three specific principles which the IEP will apply in setting an appropriate
sanction. They are set out in Part D of the IEP guidance.1 They are:
a) the sanction should reflect the impact of the conduct on the complainant
b) the sanction should reflect the nature and extent of the misconduct proved
c) where possible, the approach to sanction should incorporate positive steps
aimed at improving the culture and behaviour of Members, staff and the
wider Parliamentary community.
3.25 The first two principles are plain in their meaning. The third may have different
outcomes in different cases. Where a Respondent has demonstrated a real
understanding of what went wrong leading to the relevant misconduct, then
this principle will likely encourage a sub-panel to look to requirements of
training, undertakings as to future conduct, assurances as to improved
procedures and such like. By contrast, where a Respondent has demonstrated
no insight, or a limited understanding, of what has transpired, then this
principle is likely to indicate a rather different approach to sanction, so as to
emphasise the importance of proper conduct. The IEP will look to distinguish
between mere assertions of understanding and a genuine appreciation of what
1 The Independent Expert Panel, Appeals, referrals and sanctions: guidance for the parties, (February 2021)
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has happened. Experience suggests that such attitudes are not binary, but lie
along a spectrum.
3.26 It is right to keep in mind the significance of behaviour in breach of ICGS
policies for the reputation of Parliament, as emphasised by Dame Laura Cox
DBE in her independent enquiry report2. It is worth quoting one or two
passages from the report relevant to this case:
147. It is difficult to overstate the impact that the existence of all these
allegations [of bullying] has on the level of respect for Members and the
authority of the House of Commons as a whole, or the damage being done
to its dignity and standing and to public confidence in our Parliament. …
149. The ‘non-deskbound’ services and those with operational functions feel
that they bear the brunt of this behaviour, though the allegations of this
pattern of behaviour came from those working in other teams too; “It is as
though we are invisible to some of them. We are generally ignored unless
there is a problem and then we will be screamed or shouted at, usually in
front of people. It is very upsetting”. …
158. Some of the most serious allegations related to the conduct of some
MPs … when working on Select Committees.
159. The staff working with those Committees will source and analyse
evidence, advise the Chair and Committee members and generally manage
the process of inquiries so as to enable the Committee’s work. Regrettably,
this work has resulted in reports of some completely unacceptable behaviour.
Some Members are said to “cross the line between an acceptable level of
rudeness and strong-arm tactics, humiliation or intimidation,” …
162. ... The lack of support when something goes wrong is particularly
wounding given the strong professional ethic, among Clerks in particular,
that they should be “seen but not heard” and should “always provide
seamless support,” whatever the provocation. These traditional functions
“suppress any ‘fight or flight’ response in relation to the behaviour of some
Members … our job is to secure the process of business, so when publicly
subjected to humiliating abuse, we stay quiet, we try and smooth things out,
we don’t confront at the time, but we pay a ransom”. …
164. In general, resilience and fortitude in the face of unacceptable
behaviour, together with not making a fuss or creating difficulties for senior
2 Dame Laura Cox DBE, The Bullying and Harassment of House of Commons Staff: Independent Inquiry Report, 15 October 2018
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colleagues, are seen as valued competencies. The ability of employees to
cope with such behaviour is seen as “a significant route to promotion” or as
a “badge of honour”.
3.27 There can be no doubt that the impact of the conduct in this case on the
Complainants was significant, with legitimate concerns raised regarding
professional reputation and future career. The Complainants and other
Parliamentary staff who were subjected to the Respondent’s conduct felt that
this whole episode was noteworthy by the vehemence and persistent nature of
the Respondent’s actions. As they recited in paragraph 2.12 (a) and (b) of their
decision, the sub-panel below reached a clear view on the nature of the
conduct and its impact. We see no basis for concluding that they
misunderstood or misapplied this principle in any way.
3.28 In paragraphs 2.12 and 2.13 of their decision, the sub-panel below enumerated
the aggravating and mitigating factors relevant to the case. We do not intend
to repeat them. It is sufficient to say that we consider they identified the
important factors under both heads, and gave them appropriate weight. In
particular, (see paragraphs 2.16 and 2.17 of their decision) we consider they
judged the level of insight and contrition shown by the Respondent with
accuracy. We have noted above the fact that the Respondent indicated to us
that he wished he had appealed the conclusions of the Commissioner,
suggesting that he still thinks what he did could not properly amount to a
breach of the Policy. It was also noteworthy that in the very last phase of his
oral remarks to us he emphasised a number of points which clearly in his view
defined what had happened. He emphasised that he had “at no stage used
inappropriate language”, he had never raised his voice, he had repeatedly
asked for help and he had panicked. He had never bullied anyone. We
ourselves were left with the clear impression that he still had not fully accepted
the nature and extent of what he had done.
3.29 In his written submissions, the Respondent submitted that “the panel reached
contradictory conclusions as to the appellant’s remorse”. We reject that
criticism specifically. In our view, it is the Respondent who has expressed
contradictory attitudes to what he did.
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3.30 We accept that the Respondent had faced a number of personal difficulties at
the time in question. The sub-panel below properly took this into consideration
as a mitigating factor.
3.31 We fully grasp that the life of an MP can be highly pressurised, and we accept
that the circumstances which arose on 27 April 2020 were difficult. But they
were difficult for everyone, as common sense would have told the Respondent.
While the particular characteristics of an MP’s life are unique, the level of
pressure upon them is not. Many public servants bear comparable levels of
pressure, whether in the military, the emergency services, the senior civil
service or the judiciary, and in this instance, as staff in the House of Commons.
The responsibilities and stresses of being an MP do not justify a loss of
courtesy, an exaggerated sense of importance or entitlement, or bullying.
3.32 For these reasons, this appeal is dismissed. Our conclusion is that the
determination of a requirement to make a public apology on the floor of the
House was proper and proportionate, and it is sustained.
3.33 We have set out in a separate document for the Respondent the points that we
require to be included in his apology.